Posts Tagged 'employers'

A new law in California is squarely aimed at reducing historical wage disparity, particularly between male and female employees. On January 1, 2018, a new law will take effect in California to prohibit employers from seeking “salary history information, including compensation and benefits, about an applicant for employment.” The new law, Section 432.3 of the Labor Code, also requires employers to provide the pay scale of the position to the applicant upon reasonable request.

But even under this new law, employers can still access salary history information under certain circumstances. Employers may review salary history information that is publicly available under federal or state law, including information that is obtainable under the California Public Records Act or the federal Freedom of Information Act. Employers may also consider and rely on salary history information in determining the salary for that applicant, if the “applicant voluntarily and without prompting discloses salary history information to a prospective employer….” But, even when employers can rely on voluntarily disclosed salary information to set a particular salary, job applicants are still protected by California’s Equal Pay Act. Any prior salary information about the applicant still cannot be used as the sole justification for “any disparity in compensation” for employees of different sexes, races, or ethnicities for “substantially similar work.”

It seems likely there will be a challenge to the constitutionality of the new restriction, most likely on free speech grounds. Other states and municipalities have passed similar laws restricting employers from inquiring about salary history. Philadelphia has a similar ordinance passed earlier this year to prohibit employers from asking an applicant about prior salaries and from relying on salary information unless that information was voluntarily disclosed by the applicant. The Chamber of Commerce for Greater Philadelphia filed a lawsuit, challenging the ordinance on several grounds, including “chilling” the protected speech of employers under the First Amendment, and violating the Due Process Clause of the Fourteenth Amendment because of the severe penalties employers risk incurring. While this case is still pending, the Chamber of Commerce raises questions of constitutionality that could apply as well to California’s new law.

Employment laws change constantly at federal, state and local levels. In preparation for the new year, employers should review the documents they use in the hiring process, including job applications and new hire documents, and remove questions pertaining to salary history. Employers should also instruct any employees who may be interviewing applicants not to ask about an applicant’s salary history. And, for each open position, employers should ensure pay scales are readily available to disclose in response to an applicant’s request.

Conkle, Kremer & Engel attorneys are experienced at helping employers navigate the shifting maze of laws and regulations they face, and resolving employment issues as they arise.

If you’re a California employer, you may have heard people refer to “PAGA” and wondered what it’s all about. PAGA is a legal device that employees can use to address Labor Code violations in a novel way, in which employee representatives are allowed to act as if they are government enforcement agents.

The California Labor and Workforce Development Agency (CLWDA) has authority to collect civil penalties against employers for Labor Code violations. Seems simple enough. But in an effort to relieve an agency with limited resources of the nearly impossible task of pursuing every possible Labor Code violation committed by employers, the California legislature passed the Private Attorney General Act of 2004 (“PAGA”). PAGA grants aggrieved employees the right to bring a civil action and pursue civil penalties against their employers for Labor Code violations, acting on behalf of the State of California as if they were the CLWDA. If the aggrieved employees prevail against the employer, the employees can collect 25% of the fines that the state of California would have collected if it had brought the action.

Penalties available for Labor Code violations can be steep – for some violations, the state of California can recover fines of $100 for an initial violation to $200 for subsequent violations, per aggrieved employee, per pay period. These penalties can add up to serious money, especially if the aggrieved employee was with the company for some time. But what makes PAGA particularly dangerous for employers is the ability of employees to bring a representative action (similar to a class action), in which they can pursue these penalties for violations of the Labor Code on behalf of not only themselves, but also all others similarly situated. Under this scheme, an aggrieved employee can bring an action to pursue penalties on behalf of an entire class of current and former employees, thereby multiplying the penalties for which an employer can be on the hook and ballooning the risk of exposure. That risk is further amplified because PAGA also permits plaintiff employment attorneys to recover their fees if their claim is successful.

There is an upward trend in use of PAGA against California employers. A July 2017 California Supreme Court decision, Williams v. Superior Court, exacerbated the problem for employers: The California Supreme Court decided that plaintiff employment attorneys can obtain from employer defendants the names and contact information of potentially affected current and former employees throughout the entire state of California. This means the PAGA plaintiffs can initiate an action and then pursue discovery of all possible affected employees and former employees throughout California, which can greatly expand the pool of potential claimants and ratchet up the exposure risk for employers.

Employers in California need to be attuned to Labor Code requirements and careful in their manner of dealing with employees, so that they avoid exposure to PAGA liability to the extent possible. Conkle, Kremer & Engel attorneys are familiar with the latest developments in employment liability and able to assist employers avoid trouble before it starts, or respond and defend themselves if problems have arisen.

Is an employer free to fire an employee who circulates to co-employees a memo expressing ideas that are noxious to the employer’s efforts to avoid prohibited discrimination? Perhaps surprisingly, the answer can be, “No.”

A good example is the recent event in which Google fired James Damore, an engineer, for circulating a memo, or “manifesto,” explaining a basis for gender bias among computer engineers. His memo, entitled, “Google’s Ideological Echo Chamber – How bias clouds our thinking about diversity and inclusion,” purported to be a personal response to what he viewed as the shaming and silence of those in his field who have differing views about gender in the workplace, and whose views are inconsistent with Google’s “dominant ideology.” In the memo, Damore provided what he called “biological” explanations for why there is a gender gap in technology, such as: women are more neurotic and thus tend to pick less stressful jobs; women are more “directed towards feelings and aesthetics rather than ideas;” and men have a higher drive for status. Damore posted this screed to Google’s internal messaging board. It was a message to his co-workers, and hostile to his employer’s position.

As Damore acknowledged, engineering at Google requires collaboration and teamwork. Damore’s statement put Google’s management in a difficult place – how can Damore continue to work on any team that involves women? Further, Google’s employee review process emphasizes peer reviews, particularly by high-level engineers such as Damore. Damore’s expressed biases could cause questions as to the fairness of his reviews, and his position as a supervisor could be argued to create a hostile work environment for the female minority with whom he works. It is not surprising, then, that Google employees reacted by demanding Damore be disciplined or terminated. Google agreed, and Damore was terminated.

But Damore seems to have anticipated that reaction, and took steps to protect his own interests. As quoted by the New York Times, Damore included in his memo an unusually lawyerly statement: “I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does.” After the termination, Damore submitted a complaint to the National Labor Relations Board (NLRB) claiming that Google’s upper management was “misrepresenting and shaming me in order to silence my complaints,” and reminding Google that it is “illegal to retaliate” against an NLRB charge.

Was Google’s action defensible? The National Labor Relations Act Sections 7 & 8(a)(1) (29 U.S.C. Section 157 & 158(a)(1)) makes unlawful violating employees’ rights to engage in “protected concerted activities.” “Concerted activities” are broadly defined to include “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….” Most often, “concerted activities” are associated with union activity, but the NLRB protects activity that is not specifically union oriented. This can include communicating with coworkers regarding wages and working conditions, and expressing preferences for political candidates who support favorable labor issues such as higher wages for hourly workers. In doing so, employees are permitted to use company bulletin boards, both electronic and physical, and company email, on non-working time.

The effect of this protection is that, if Damore challenges his termination, he will likely argue that Google’s decision to terminate him curtailed his rights to discuss his political beliefs and to engage like-minded employees about his view that the hiring and promotions practices at Google are unfair to men.

Because Damore works in California, there are additional considerations under state law. California Labor Code §1101 provides that “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office; or (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” While this may not control an adverse employment decision by an employer against a single individual, once coworkers learn that an employee was fired based on his speech or political activities, those coworkers may perceive that action as a threat or policy. As the Supreme Court has recognized, employees’ economic dependence on the employer can reasonably lead them to pick up even subtle signals when their jobs are at stake. NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). Here, Damore’s like-minded coworkers could interpret his firing as a threat to their employment should they express views similar to his.

The unfortunate upshot for Google is that Damore’s termination seems like a retaliation claim ripe for filing. Though many may personally disagree with Damore’s views on gender in the workplace, and he may have absolutely no factual or evidentiary basis for his position, he could argue in an action against Google that he was attempting to organize a group of like-minded workers to oppose what he believes are Google’s gender biases or an unfair reverse discrimination policy. His “manifesto” appears to structured for this very argument.

It is ironic that the policies of the NLRB and California Labor Code, which protect political organization and prohibit retaliation, are what may ultimately force Google to suffer legal liability for Damore’s termination for expressing disagreement with Google’s anti-discrimination policies.

As these events demonstrate, the application of employment law and policies in real world situations can be challenging. Protection of one worthwhile policy can seemingly conflict with others, and well-meaning employers can find themselves having to make very difficult choices. Employers should consult counsel experienced in the sometimes complex issues that can arise in many different employment circumstances.

Starting July 1, 2015, virtually all California employers – regardless of size – will be required to provide employees with paid sick leave.

The new “Healthy Workplaces, Healthy Families Act of 2014” (AB 1522), California Labor Code Section 245 et seq., requires that all employees – full-time, part-time, temporary and seasonal – who have worked for 30 or more days within a year from the beginning of employment, must be given paid sick leave.

Employees who are providers of in-home support services, and employees of air carriers are excluded from the new law. Also excluded are employees who are covered by a collective bargaining agreement that expressly provide for wages, paid sick leave, or hours.

The Healthy Workplaces, Healthy Families Act may have been passed with good intentions, but the Act’s complex and seemingly contradictory accrual, carryover and use requirements and broad scope of permitted use has left many employers feeling ill as they prepare for compliance before the July 1, 2015 effective date.

The paid sick leave accrues at the rate of one hour of paid leave for every 30 hours worked. Thus, a full-time employee working 2,080 hours per year can accrue up to 69.3 hours, or 8.67 days, of paid sick leave. However, under the new law, employers can limit an employee’s use of paid sick days to 3 days or 24 hours in each year of employment. And, while the law requires accrued paid sick days to carry over to the following year of employment, an employer has no obligation to allow an employee’s total accrual of paid sick leave to exceed 6 days or 48 hours.

Fortunately, there appears to be a simple solution for employers wishing to avoid the accrual and carryover requirements. An employer can provide employees with 3 paid sick days (24 paid sick hours assuming eight-hour work days) at the beginning of each calendar year, anniversary date of employment or twelve-month basis.

The new paid sick leave law allows employees to use paid sick days for broad purposes, beyond that employee’s medical care. An employee can take paid sick days for the diagnosis, care or treatment of an existing health condition or preventive care of the employee or a family member. In addition, an employee who is a victim of domestic violence, sexual assault or stalking can use paid sick days for specified purposes, including to obtain a restraining order or to obtain services from a domestic violence program.

An employee can take paid sick days either upon oral or written request. The law provides that if the need for paid sick leave is foreseeable, the employee shall provide reasonable advance notification. If the need for paid sick leave is unforeseeable, the employee shall provide notice of the need for the leave as soon as practicable.

California employers will need to take specific action before July 1, 2015 to ensure that they will be fully compliant with the Act on July 1, 2015.

Employers are also required to provide employees with written notice that sets forth the amount of paid sick leave available, for use on either the employees’ itemized wage statement or in a separate writing provided on the designated pay date with the employees’ payment of wages.

Finally, the Act requires employers to keep for at least three years records documenting the hours worked and paid sick days accrued and used by an employee, and allow the Labor Commissioner to access these records.

Conkle, Kremer & Engel attorneys provide employers with practical guidance and legal expertise to ensure compliance with ever-changing labor laws, including wage and hour issues and successful development and implementation of a sick leave policy that complies with the Healthy Workplaces, Healthy Families Act of 2014.